STATE OF VERMONT, PETITIONER V. RICK COX
No. 86-1108
In the Supreme Court of the United States
October Term, 1986
On Writ of Certiorari to the Supreme Court of Vermont
Brief for the United States as Amicus Curiae Supporting Petitioner
TABLE OF CONTENTS
Question Presented
Interest of the United States
Statement
Summary of argument
Argument:
I. Respondent's interview with the probation officer was
not compelled
II. Respondent's statements to the probation officer were
voluntary
III. The failure to remind respondent of his Fifth
Amendment privilege creates no presumption that his
admissions were compelled
Conclusion
QUESTION PRESENTED
Whether respondent's Fifth Amendment privilege against compelled
self-incrimination was violated when respondent participated in a
presentence interview after the probation officer told him she would
not return if he chose to postpone the interview until he had
consulted an investigator from the public defender's office.
INTEREST OF THE UNITED STATES
The procedures for conducting presentence interviews involved in
this case closely parallel the procedures used in the federal courts.
See Fed. R. Crim. P. 32(c). Accordingly, the Court's decision in this
case may affect the practice of federal probation officers in
conducting presentence inverviews with convicted defendants. In
addition, the federal government has a significant interest in the
interpretation of the Fifth Amendment privilege against compulsory
self-incrimination and the scope of Miranda v. Arizona, 384 U.S. 436
(1966), issues that are presented by the facts of this case.
STATEMENT
Respondent, who was originally charged with kidnapping, entered
nolo contendere pleas to three counts of simple assault in the
District Court of Vermont. Following respondent's entry of his plea,
the district court ordered the probation officer to prepare a
presentence report. To help her prepare the report, the probation
officer scheduled an interview with respondent at the correctional
institution where he was incarcerated (Pet. App. 2a). At the
subsequent sentencing hearing, respondent's counsel described what
happened when the probation officer arrived for the interview (Pet.
App. 4a; J.A. 15):
(W)hen the Probation Officer came to interview our client we in
fact arranged for our investigator to go down and talk with him
to prepare him for what would be coming forward, and he
indicated to the Probation Officer that he really didn't want to
talk to her until (the investigator on the case) was there. * *
* And she indicated to him that that was fine but she wouldn't
come back again. And made him feel as though he would have no
opportunity to consult with us before talking with her.
Respondent then agreed to be interviewed. In the course of the
interview, respondent discussed with the probation officer his
drug-related activities (Pet. App. 6a-7a). The presentence report
contained references to respondent's admissions about his prior
involvement with drugs (J.A. 20-21, 22, 23).
At the sentencing hearing, respondent's counsel objected to the
court's consideration of the presentence report. Counsel relied
primarily upon a state court decision holding that a sentencing court
may not rely on "mere assertions of criminal activity." In addition,
counsel argued that some of respondent's admissions to the probation
officer should not be considered by the court because if respondent
had had an opportunity to speak with a representative of the public
defender's office prior to the interview, he would have been advised
not to make some of the admissions he made (J.A. 15). Counsel further
asserted that "it must be Constitutionally necessary for the probation
officer who is preparing a (presentence report) to * * * tell a
defendant his rights he is waiving and what trouble he might get
himself into by being fully open and not remaining silent" (J.A. 17).
The district court rejected counsel's arguments and accepted the
presentence report with some redactions (J.A. 17-20). After giving
respondent an opportunity to make a statement, which respondent
refused (J.A. 21), the court imposed consecutive terms of 6 to 12
months' imprisonment on each of the three counts.
On appeal to the Vermont Supreme Court, respondent argued that the
sentencing court erred by relying on information in the presentence
report that was obtained in violation of respondent's privilege
against compulsory self-incrimination and his right to counsel (Pet.
App. 2a). The Vermont Supreme Court vacated the sentence on the basis
of respondent's claim under the Fifth Amendment; the court therefore
did not address his other claims (ibid.). The court first found that
respondent's request to consult with the investigator was equivalent
to a request to consult with counsel (Pet. App. 5a). /1/ It then
rejected the State's argument that the Fifth Amendment privilege is
inapplicable to presentence investigations (Pet. App. 4a) and its
argument that respondent's decision to proceed with the interview
constituted a waiver of the privilege (Pet. App. 4a-7a). The court
noted that respondent "was presented with two choices: (1) to await
the investigator and forfeit the interview, or (2) to proceed with the
interview without additional advice" (Pet. App. 6a). As a result, the
court concluded, the condition under which respondent continued with
the presentence interview was coercive, which rendered respondent's
statements involuntary, in violation of his Fifth Amendment rights
(ibid.). Although the court referred in passing to the fact that
respondent was incarcerated at the time of the interview, it did not
consider whether Miranda warnings were necessary. As a remedy for the
Fifth Amendment violation, the court vacated respondent's sentence and
remanded for the preparation of a new presentence report and
resentencing by a judge unfamiliar with the original report (Pet. App.
7a).
SUMMARY OF ARGUMENT
The Vermont Supreme Court was incorrect in holding that
respondent's statements were obtained in violation of his Fifth
Amendment privilege against compulsory self-incrimination. First, the
choice presented to respondent -- to participate in a presentence
interview at the appointed time without the advice of his counsel's
representative, or to forfeit the interview completely -- does not
amount to compulsion within the meaning of the Fifth Amendment.
Second, even if respondent is viewed as having been compelled to
proceed with the interview, he voluntarily chose to provide
information without asserting his Fifth Amendment privilege. The
general rule is that the Fifth Amendment privilege is not
self-executing; even a witness who is compelled to testify must
assert the privilege or lose the benefit of it. If he chooses to make
disclosure instead of claiming the privilege, the government has not
compelled him to incriminate himself. Finally, although the situation
presented by custodial interrogation has been held to be an exception
to the general rule that one must assert the Fifth Amendment privilege
in order to benefit from its protections, the extraordinary safeguard
of requiring specific warnings and a voluntary waiver of Fifth
Amendment rights as a prerequisite to custodial interrogation was not
a basis for the state court's decision, nor is it applicable to the
circumstances of this case. Respondent's disclosures to the probation
officer therefore did not constitute a form of compelled
self-incrimination in violation of respondent's Fifth Amendment
privilege.
ARGUMENT
I. RESPONDENT'S INTERVIEW WITH THE PROBATION OFFICER WAS NOT
COMPELLED
When the investigator from the public defender's office did not
arrive for respondent's presentence interview on time, respondent was
faced with the choice of speaking to the probation officer at the
designated time or forgoing the interview. That choice did not
constitute a form of coercion sufficient to render respondent's
statements involuntary in violation of his Fifth Amendment privilege
(Pet. App. 6a). /2/
What the Fifth Amendment privilege proscribes is not the necessity
to make difficult choices, but "genuine compulsion of testimony."
United States v. Washington, 431 U.S. 181, 187 (1977) (quoting
Michigan v. Tucker, 417 U.S. 433, 440 (1974)). That compulsion exists
only in situations in which official actions "overbear (defendant's)
will to resist and bring about confessions not freely self-determined"
(Beckwith v. United States, 425 U.S. 341, 348 (1976)). Cf. Colorado
v. Connelly, No. 85-660 (Dec. 10, 1986), slip op. 9 ("coercive police
activity is a necessary predicate to the finding that a confession is
not 'voluntary' within the meaning of the Due Process Clause of the
Fourteenth Amendment"); Schneckloth v. Bustamonte, 412 U.S. 218,
223-227 (1973) (concept of voluntariness requires consideration of
totality of circumstances to determine whether defendant's "will has
been overborne and his capacity for self-determination critically
impaired"). The choice that the probation officer gave to respondent
was not even remotely coercive under that standard.
This Court has repeatedly held that the Fifth Amendment privilege
does not protect an individual from being faced with hard choices as
to whether to exercise the privilege. The Court summarized a number
of those choices in McGautha v. California, 402 U.S. 183 (1971).
Thus, a criminal defendant must decide whether to testify in his own
defense, knowing that if he does, he will then be subject to
cross-examination, and that he may be impeached by proof of prior
convictions or the like. Id. at 215; see, e.g., Brown v. United
States, 356 U.S. 148 (1958); Fitzpatrick v. United States, 178 U.S.
304, 314-316 (1900); Spencer v. Texas, 385 U.S. 554, 561 (1967);
United States v. Havens, 446 U.S. 620, 627-628 (1980). A defendant
whose motion for judgment of acquittal is denied at the close of the
government's case must decide whether to put on a defense, knowing
that if he does, he runs the risk of bolstering the government's case
enough to support a guilty verdict. McGautha v. California, 402 U.S.
at 215. And a defendant must choose between remaining silent and
subjecting himself to cross-examination by testifying in order to
present an affirmative defense. Id. at 216; Williams v. Florida, 399
U.S. 78, 84 (1970); Barnes v. United States, 412 U.S. 837, 846-847
(1973). Even though each of these choices is difficult, the Court has
held that the government does not violate the Fifth Amendment by
requiring the defendant to make them. /3/
The Court's decision in McGautha is especially pertinent to this
case. In McGautha, the Court rejected the defendant's claim that the
state's single-verdict procedure, where guilt and punishment are both
determined by a jury at a single trial, unlawfully compelled the
defendant to become a witness against himself on the issue of guilt
because of the risk that he might be sentenced to death without having
addressed the sentencing body. The Court concluded that this was
simply one more of the hard choices routinely faced by criminal
defendants (42 U.S. at 213):
The criminal process, like the rest of the legal system, is
replete with situations requiring "the making of difficult
judgments" as to which course to follow. McMann v. Richardson,
397 U.S. (759) 769 ((1970)). Although a defendant may have a
right, even of constitutional dimensions, to follow whichever
course he chooses, the Constitution does not by that token
always forbid requiring him to choose. The threshold question
is whether compelling the election impairs to an appreciable
extent any of the policies behind the rights involved.
Based on this analysis, the Court in McGautha rejected "the
suggestion that a desire to speak to one's sentencer unlawfully
compels a defendant in a single-verdict capital case to incriminate
himself" (402 U.S. at 216). The fact that a defendant's sentence,
rather than his guilt, was at issue did not "call for a difference in
constitutional result" (402 U.S. at 216-217). Accordingly, the Court
concluded that the policies of the privilege against compulsory
self-incrimination are not offended when a defendant in a capital case
"yields to the pressure to testify on the issue of punishment at the
risk of damaging his case on guilt" (402 U.S. at 217).
If, as the Court concluded in McGautha, the policies of the Fifth
Amendment privilege are not offended when the defendant "yields to the
pressure to testify on the issue of punishment at the risk of damaging
his case on guilt" (402 U.S. at 217), it follows a fortiori that the
Fifth Amendment is not violated when a defendant in a non-capital case
yields to the far less compelling pressure of participating in the
presentence interview lest he lose his opportunity to tell his side of
the story to the probation officer. This is particularly true in
light of the fact that even if respondent had chosen not to
participate in the interview, he would still have been able to "speak
to (his) sentencer" (McGautha, 402 U.S. at 216) by exercising his
right of allocution. Thus, the only pressure that the probation
officer's choice exerted on respondent stemmed from respondent's
perception that by failing to participate in the interview, he might
reduce his prospects that the probation officer would write a
favorable sentencing report. /4/ That is not enough to render
respondent's interview with the probation officer the product of
compulsion. /5/
II. RESPONDENT'S STATEMENTS TO THE PROBATION OFFICER WERE VOLUNTARY
Even if this Court concludes, contrary to our submission, that the
presentence interview was compelled, respondent's statements were
nonetheless voluntary and therefore were not obtained in violation of
respondent's privilege against compulsory self-incrimination. When
the probation officer presented respondent with the choice of
participating in the scheduled interview or forgoing the opportunity
of being interviewed, respondent decided to be interviewed, and he
answered all the questions put to him without objection. Accordingly,
his responses to the probation officer's questions -- even if
incriminating -- were not involuntary.
The Vermont Supreme Court ignored the important distinction between
compulsion to participate in the interview and the voluntary decision
to make incriminating statements without asserting the privilege. It
is quite clear from this Court's cases that the mere obligation to
appear and answer questions does not make otherwise voluntary
statements compelled ones within the meaning of the Fifth Amendment.
The Fifth Amendment privilege does not confer on a witness an absolute
right to refuse to respond to a grand jury summons or a subpoena to
testify at trial. /6/ But a witness in either proceeding has not been
compelled to answer within the meaning of the Fifth Amendment unless
he is required to answer specific incriminating questions despite a
valid claim of the privilege. United States v. Mandujano, 425 U.S.
564, 572-575 (1976) (plurality opinion). Similarly, a taxpayer is
certainly compelled to engage in a self-incriminatory act in the
course of completing the return. Garner v. United States, 424 U.S.
648, 650-656 (1976); United States v. Sullivan, 274 U.S. 259 (1927).
And a probationer who is required to report to his probation officer
and answer questions truthfully is not thereby compelled to
incriminate himself. Minnesota v. Murphy, 465 U.S. 420, 427 (1984).
The question is what happens when the witness under compulsion to
testify is asked incriminating questions.
At that point, the general rule is that such a witness, once asked
incriminating questions, must claim the protection of the privilege or
he will not be considered to have been compelled. "(I)f a witness
under compulsion to testify makes disclosures instead of claiming the
privilege, the government has not 'compelled' him to incriminate
himself." Garner v. United States, 424 U.S. 648, 654 (1976) (footnote
omitted). As the Court has explained, "(t)he Fifth Amendment
privilege against compelled self-incrimination is not self-executing.
At least where the Government has no substantial reason to believe
that the requested disclosures are likely to be incriminating, the
privilege may not be relied upon unless it is invoked in a timely
fashion." Roberts v. United States, 445 U.S. 552, 559 (1980);
Minnesota v. Murphy, 465 U.S. at 427, 429 (the same rule applies to a
witness who is confronted with questions that the government should
reasonably expect will elicit incriminating evidence); United States
v. Mandujano, 425 U.S. at 574-574 (quoting United States v. Monia, 317
U.S. 424, 433 (1943) (Frankfurter, J., dissenting)).
Respondent's decision to participate in the interview and to answer
all the probation officer's questions, without claiming his privilege
when the probation officer inquired about his drug-related activities,
precludes his belated assertion that the disclosures he made in
response to those inquiries were compelled. The district court thus
could properly rely upon those disclosures in determining the
appropriate sentence to impose on respondent.
III. THE FAILURE TO REMIND RESPONDENT OF HIS FIFTH AMENDMENT
PRIVILEGE CREATES NO PRESUMPTION THAT HIS ADMISSIONS WERE COMPELLED
An exception to the general rule that the Fifth Amendment privilege
must be claimed is the requirement of Miranda v. Arizona, supra, that
incriminating statements obtained during custodial interrogation must
be excluded unless the suspect failed to claim the Fifth Amendment
privilege after being specifically advised of his right to remain
silent and of the consequences of his failure to assert it. The Court
has made it clear, however, that this exception "does not apply
outside the context of the inherently coercive custodial
interrogations for which it was designed." Roberts v. United States,
445 U.S. at 560; see also Minnesota v. Murphy, 465 U.S. at 429-430.
This case does not involve such a context.
Although the Vermont Supreme Court did not rely on Miranda v.
Arizona, supra, its decision might be explained under this Court's
cases interpreting the Miranda doctrine (see, e.g., Mathis v. United
States, 391 U.S. 1 (1968); Minnesota v. Murphy, 465 U.S. at 429-430)
on the theory that, because respondent's statements were taken while
he was in custody and because the probation officer failed to advise
him of his Miranda rights, those statements were inadmissible in any
judicial proceeding. /7/ "Failure to administer Miranda warnings
(when they are required) creates a presumption of compulsion." Oregon
v. Elstad, 470 U.S. 298, 307 (1985). This rationale assumes that
Miranda applies in this situation, when in fact it does not. /8/
This Court's decision in Miranda was premised on the assumption
that custodial police interrogation presents a special risk of
pressures that may violate the prohibition against compelled
self-incrimination. The Court emphasized that the purpose of the
warnings prescribed in Miranda is to protect against these pressures,
and that warnings therefore are not required in every case of official
questioning (384 U.S. at 477, 478). The warnings must be administered
only when "questioning (is) initiated by law enforcement officers
after a person has been taken into custody or otherwise deprived of
his freedom of action in any significant way" (id. at 444 (footnote
omitted)). The Court subsequently has made clear that the proper
inquiry for determining when a suspect is in police custody is
"whether there is a 'formal arrest or restraint on freedom of
movement' of the degree associated with a formal arrest." California
v. Beheler, 463 U.S. 1121, 1125 (1983) (quoting Oregon v. Mathiason,
429 U.S. 492, 495 (1977)).
Miranda involved police questioning of individuals suspected of
criminal activity who were not otherwise subject to confinement.
Respondent, however, was incarcerated because he had already been
convicted; he was not in any special custodial status for the purpose
of or in connection with investigative questioning, the setting for
which Miranda was intended.
An inmate who is questioned for some purpose without the imposition
of any additional restraints on his liberty is not in the same
position for purposes of Miranda as a suspect who was previously at
liberty and is taken into custody for the purpose of questioning. The
courts of appeals have recognized that "(a) rational inmate will
always accurately perceive that his ultimate freedom of movement is
absolutely restrained and that he is never at liberty to leave an
interview conducted by prison or other government officials" (United
States v. Conley, 779 F.2d 970, 973 (4th Cir. 1985), cert. denied, No.
85-6467 (Oct. 6, 1986)). Thus, application of the traditional
standard for determining whether an interviewee is in custody for
purposes of Miranda "would be tantamount to a per se finding of
'custody'" for prison inmates. Ibid.; see also Cervantes v. Walker,
589 F.2d 424, 427-428 (9th Cir. 1978) (application of the traditional
"'free to leave'" standard would "lead to the conclusion that all
prison questioning is custodial because a reasonable prisoner would
always believe he could not leave the prison freely," thus leading to
"the illogical position of providing greater protection to a prisoner
than to his nonimprisoned counterpart"). This result would be wholly
inappropriate. /9/
A prison inmate, of course, enjoys no freedom of movement. The
restraints upon a prisoner's liberty that are a constant of everyday
prison life become familiar to the inmate and are therefore unlikely
to have the coercive effect that the Miranda warnings are designed to
dispel. Such a coercive effect will arise in the prison context only
when an inmate's liberty has been restricted in some manner that is
different from the restraints that are a consistent feature of prison
life. As the Ninth Circuit has observed, "(i)n the prison situation,
(the concept of restriction of the suspect's freedom) necessarily
implies a change in the surroundings of the prisoner which results in
an added imposition on his freedom of movement. * * * (W)e look to
some act which places further limitations on the prisoner." Cervantes
v. Walker, 589 F.2d at 428; accord United States v. Cooper, 800 F.2d
412, 414-415 (4th Cir. 1986); United States v. Conley, 779 F.2d at
972-974; United States v. Scalf, 725 F.2d 1272, 1275-1276 (10th Cir.
1984); United States v. Hayes, 646 F. Supp. 146, 149-151 (N.D. Ind.
1986). For these reasons, a prison inmate should be deemed to be in
custody for pruposes of Miranda only if he is subjected to more that
the actual restraint on his liberty to depart (Cervantes v. Walker,
589 F.2d at 428).
We do not believe that a contrary result is required by this
Court's decision in Mathis, an inmate incarcerated in a state prison
was interviewed by an agent of the Internal Revenue Service about
possible federal income tax violations. The agent did not administer
Miranda warnings before initiating the questioning. This Court
reversed the inmate's subsequent conviction for filing false tax
returns on the ground that incriminating statements made in the course
of the interview should not have been admitted at trial. The Court
rejected the government's argument that Miranda is applicable "only to
questioning (of) one who is 'in custody' in connection with the very
case under investigation (391 U.S. at 4-5).
To be sure, the Court's brief opinion in Mathis can be read as
establishing a per se rule that an inmate who is subject to
questioning is automatically 'in custody' and is therefore entitled to
Miranda warnings merely by virtue of his status as a prisoner. We
believe, however, that Mathis is better understood as simply rejecting
the government's competing per se rule that Miranda should not be
applicable to an inmate who is in custody in connection with a case
other than the one under investigation. Several courts of appeals
have interpreted Mathis in that fashion. See United States v. Conley,
779 F.2d at 972; Cervantes v. Walker, 589 F.2d at 427; see also
United States v. Wiggins, 509 F.2d 454, 459-460 (D.C. Cir. 1975).
Under that interpretation, a prisoner is not put in a better position
than an ordinary citizen by being entitled to Miranda warnings prior
to questioning of any sort, regardless of the setting. On the other
hand, the prisoner is not put in a worse position than unincarcerated
persons, since he is entitled to Miranda warnings if the normal
circumstances of his confinement are changed for purposes of the
interview in question. /10/
There was no such additional restraint here. Indeed, both the
probation officer and respondent acted on the understanding that the
presentence interview was an opportunity offered to respondent, not an
incident of incarceration to which he was required to submit. That
understanding of the situation also underlies the Vermont Supreme
Court's analysis -- the "coercive" threat, in its view, was the threat
that respondent would "forfeit" the opportunity to have the interview
at a later date (Pet. App. 6a). The interview was thus viewed as a
chance for respondent to benefit himself, not as an obligation or an
imposition on him. /11/
Moreover, the presentence interview does not involve the sort of
risk of intimidation or trickery presented by police interrogation
upon which Miranda was based. See, e.g., United States v. Mandujano,
425 U.S. at 579-580. The presumption "that without proper safeguards
the circumstances of custodial interrogation deny an individual the
ability freely to choose to remain silent" (Garner v. United States,
424 U.S. at 657), is simply inapplicable here, where the probation
officer was faulted precisely for offering respondent the option of
remaining silent.
There is no suggestion that the course or contents of the interview
itself were in any way affected by the fact that petitioner attended
the interview while he was incarcerated, rather than released pending
sentencing. In the absence of any such suggestion, the fact that
defendant is incarcerated rather than released pending sentencing
should not make the interview itself custodial interrogation. The
Ninth Circuit has recognized this, holding that "(n)othing in the
record suggests that * * * presentence interviews in general() entail
pressures at all similar to those 'which the Miranda court found so
inherently coercive as to require its holding.'" Baumann v. United
States, 692 F.2d 565, 577 (1982) (quoting Beckwith v. United States,
425 U.S. 341, 341, 347 (1976)). The Fifth Circuit agrees (Brown v.
Butler, 811 F.2d 938, 941 (1987)). Cf. United States v. Dickson, 712
F.2d 952, 955 (5th Cir. 1983) (no violation of Fifth Amendment
privilege when presentence report comments unfavorably on defendant's
refusal to cooperate with federal agents). Several state cases have
reached the same result. /12/
As Baumann and Brown recognize, Estelle v. Smith, 451 U.S. 454
(1981), is not inconsistent with this analysis. There, this Court
concluded that statements an incarcerated defendant made to a
psychiatrist in the course of a court-ordered pretrial competency
examination could not be used to support imposition of the death
penalty because the defendant was not informed of his right to remain
silent. The error in Estelle was that statements made in the course
of a routine competency examination were later used to persuade the
jury to impose the death penalty. The Fifth Amendment privilege was
implicated only because the State "used respondent's own statements,
unwittingly made without an awareness that he was assisting the
State's efforts to obtain the death penalty." 451 U.S. at 466. There
was no such trickery involved here. Respondent chose to discuss his
prior offenses with the probation officer conducting the presentence
inverview. Unlike the respondent in Estelle, he could scarcely have
been under any misapprehension as to the use that might be made of his
statements. Cf. Minnesota v. Murphy, 465 U.S. at 432-433 (probationer
has no reasonable expectation that statements to probation officer
will remain confidential). Estelle indicates that the routine use of
statements made in a competency hearing for the purpose for which they
are intended is constitutionally unobjectionable. 451 U.S. at 465.
The routine use of presentence interview statements for the purpose
for which they are intended is similarly constitutionally acceptable.
CONCLUSION
The judgment of the Vermont Supreme Court should be reversed.
Respectfully submitted.
CHARLES FRIED
Solicitor General
WILLIAM F. WELD
Assistant Attorney General
WILLIAM C. BRYSON
Deputy Solicitor General
HARRIET S. SHAPIRO
Assistant to the Solicitor General
KATHLEEN A. FELTON
Attorney
APRIL 1987
/1/ The State does not challenge this determination, nor do we.
/2/ We do not dispute that respondent enjoyed the protection of the
Fifth Amendment privilege, despite the fact that he had been convicted
on his plea of nolo contendere. As this Court noted in Estelle v.
Smith, 451 U.S. 454, 462-463 (1981), the availability of the Fifth
Amendment privilege turns on the nature of the statement and the
exposure it invites, not on the type of proceeding in which the
privilege is asserted. See Minnesota v. Murphy, 465 U.S. 420, 426
(1984). A convicted but unsentenced defendant may often retain Fifth
Amendment rights, even with regard to the subject matter of his
conviction, for two reasons. First, any admissions he makes may
subject him to enhanced punishment. See United States v. Paris, 812
F.2d 471, 475 (9th Cir. 1987); United States v. Miller, 771 F.2d
1219, 1235 (9th Cir. 1985); United States v. Trejo-Zambrano, 582 F.2d
460, 464 (9th Cir.), cert. denied, 439 U.S. 1005 (1978); United
States v. Johnson, 488 F.2d 1206, 1209 (1st Cir. 1973); United States
v. Domenech, 476 F.2d 1229, 1231 (2d Cir.), cert. denied, 414 U.S. 840
(1973). Second, he may be exposed to the hazards of
self-incrimination with respect to possible prosecution for other
crimes, either in that jurisdiction or others. See United States v.
Rodriguez, 706 F.2d 31, 36-37 (2d Cir. 1983); United States v.
Yurasovich, 580 F.2d 1212, 1218 (3d Cir. 1978); United States v.
Pierce, 561 F.2d 735, 738-739 (9th Cir. 1977), cert. denied, 435 U.S.
923 (1978).
/3/ See also Jenkins v. Anderson, 447 U.S. 231 (1980). The Court
there held that a state could constitutionally impeach a testifying
defendant with his silence at the time of his arrest. The Court noted
(id. at 236) that "(i)t can be argued that a person facing arrest will
not remain silent if his failure to speak later can be used to impeach
him." The Court pointed out, however, that the Constitution "does not
forbid 'every government-imposed choice in the criminal process that
has the effect of discouraging the exercise of constitutional rights'"
(ibid., quoting Chaffin v. Stynchcombe, 412 U.S. 17, 30 (1973)).
/4/ Because the probation officer's refusal to reschedule the
presentence interview did not prevent respondent from addressing the
sentencing court, this case is not analogous to Brooks v. Tenesses,
406 U.S. 605 (1972), in which the Court struck down a state statute
that required that the defendant testify immediately after the close
of the state's case, or not at all. In Brooks, the consequence of the
defendant's refusal to testify at the outset of the defense case was
that the defendant lost all opportunity to testify at trial. In this
case, by contrast, respondent lost only the opportunity to influence
the probation officer's report.
Although there is no claim in this case that the presentence
interview was improperly scheduled, the Vermont Supreme Court
apparently assumed that respondent had the right to demand additional
time for legal consultation (Pet. App. 5a-6a). If, under state law,
respondent had a right to such a "continuance," so that the probation
officer erred in refusing to postpone the interview, respondent might
have a right -- conferred, if at all, only by state law -- to be
reinterviewed if he had declined to be interviewed and been
incorrectly deprived of his right to a subsequent interview by the
probation officer's error. His decision to proceed with the scheduled
interview, however, rendered consideration of that question
unnecessary.
/5/ This case is a far cry from Jones v. Cardwell, 686 F.2d 754
(9th Cir. 1982), on which the state court relied. In that case, the
defendant was told that he had no choice but to answer the probation
officer's questions during the presentence interview; in this case,
by contrast, respondent was offered the choice -- albeit not on the
terms he preferred -- and he decided to exercise his option to
participate in the interview.
/6/ In contrast, respondent was offered the option of not
participating in the presentence interview.
/7/ It is quite clear that this is not the basis on which the court
in fact decided the case. Not only did the court fail to mention
Miranda or its progeny, but it also mentioned only in passing that
defendant was incarcerated, and it said nothing about whether Miranda
warnings -- or any other warnings -- were given. The record does not
reveal that any such warnings were given.
/8/ The anomaly of applying the Miranda rationale to this case is
demonstrated by the fact that the state court faulted the probation
officer for offering to do precisely what Miranda requires -- to
terminate the interview when the defendant states that he wishes the
advice of counsel before proceeding. Nothing in Miranda suggests any
further obligation to resume the questioning later. See Michigan v.
Mosely, 423 U.S. 96 (1975).
/9/ Miranda itself states that it was 'not intended to hamper the
traditional function of police officers in investigating crime" and
that "(g)eneral on-the-scene questioning as to facts surrounding a
crime or other general questioning of citizens in the fact-finding
process is not affected by (the) holding" (384 U.S. at 477). Failure
to modify the definition of "custody" to take account of the special
circumstances of the prison setting would deprive prison
administrators of this leeway accorded by Miranda itself.
/10/ Formal investigative questioning of an inmate typically
results in a change in the normal circumstances of the inmate's
confinement that may justify a finding that the inmate was in custody
for Miranda purposes. That was the case in Mathis, and it was also
the case in several of the court of appeals cases that have held
Miranda applicable to interrogation of a prison inmate. See Battie v.
Estelle, 655 F.2d 692, 699 (5th Cir. 1981) (defendant awaiting trial
in county jail was entitled to Miranda warnings when he was examined
by a court-appointed psychologist); Palmigiano v. Baxter, 510 F.2d
534, 536-537 (1st Cir. 1974), rev'd on other grounds, 425 U.S. 308
(1976) (Miranda warnings required when incarcerated suspect was
interviewed in connection with prison disciplinary proceeding); see
also Estelle v. Smith, 451 U.S. 454, 466-469 (1981) (warnings must
precede court-ordered psychiatric examination of prisoner).
/11/ In the federal system, the offender's cooperation with the
probation office may often be a critical factor for the sentencing
court when there is a question whether to place an offender on
probation or impose a term of imprisonment. In the Sentencing
Guidelines & Policy Statements for the Federal Courts submitted to
Congress and the President on April 13, 1987, the United States
Sentencing Commission has formalized consideration of this factor.
The guidelines provide that the court may reduce the offense level by
two levels, depending upon the nature of the case and manner and
extent to which the defendant acknowledged responsibility. In making
this determination, one factor the guidelines suggest that the court
look to is whether the defendant made "voluntary and truthful
admission to authorities of involvement in the offense and related
conduct." See Section 3E1.1 and commentary to that section. It is
thus apparent why an offender is likely to regard a presentence
interview as an opportunity to have a favorable influence on the
disposition of his case.
/12/ Burch v. State, 450 N.E.2d 528 (Ind. 1983) (Miranda warnings
not required at presentence interview; does not disclose whether
defendant was incarcerated); Commonwealth v. Burton, 451 Pa. 12, 14,
301 A.2d 675, 677 (1973) (same); Booth v. Commonwealth, 675 S.W.2d
856 (Ky. 1984) (same).